Bankruptcy Law

Any change of assignee must be authorized by the court in the judgment adopting the disposal plan, in accordance with Article L. 642-9(3) of the Commercial Code . Often, the offer is made by an individual on behalf of a legal entity that is being formed or is yet to be formed, which will take its place. When authorization to sell a production unit is granted to persons specifically designated or,  …

Authorization for substitution by the court

Any change of assignee must be authorized by the court in the judgment adopting the disposal plan, in accordance with Article L. 642-9(3) of the Commercial Code . Often, the offer is made by an individual on behalf of a legal entity that is being formed or is yet to be formed, which will take its place. When authorization to sell a production unit is granted to persons specifically designated or, failing that, to “any natural person or legal entity that may be substituted”, the right of substitution may be exercised, in the event that the designated transferees do not follow through with their offer, only by the legal representative, without the rules of contractual subrogation being applicable .

Authorization can only be granted if the initial purchaser guarantees the undertakings given in the plan . However, case law restricts the scope of this undertaking to the content of the takeover offer and does not consider the purchaser to be liable for the proper performance by the substitute purchaser of the obligations arising from the contracts assigned to the other contracting parties , unless the purchaser undertakes to the contrary in relation to the creditor . In particular, while the original acquirer remains jointly and severally liable for the performance of the undertakings it has given, in particular the undertakings to take over the jobs, it does not guarantee that these jobs will be maintained by the substitute assignee . Nor does it automatically guarantee the transferee's obligation to pay the instalments on the transferred loan .

In the absence of an undertaking to the contrary by the original assignee, the substitute assignee is bound to perform the obligations arising from the contracts transferred under the plan, even if its identity is not mentioned in the judgment approving the disposal plan . Similarly, the lessor may not take action against the offeror for payment of sums due under the transferred contracts, since this obligation is incumbent on the substitute assignee .

Lastly, Article L. 642-9(4) , provides that any substitution of assignee not authorized by the court is null and void at the request of any interested party or the public prosecutor.

Applicable to the receivership procedure on reference from art. L. 631-22 C. com.

See by analogy, Cass. com., 19 October 1993, LawLex202100005136JBJ (LJ).

C. com. L. 642-9, para. 3, applicable to the receivership procedure by reference to art. L. 631-22 C. com.

Cass. com., 12 July 2016, LawLex202100001190JBJ (RJ).

See, on the principle, Cass. com. 7 October 2020, LawLex202200007455JBJ (LJ). See, in the presence of a clause to the contrary, Cass. com. 20 September 2017, LawLex202100003303JBJ (RJ).

Cass. com., 2 February 2022, LawLex202200001596JBJ (RJ).

Cass. com., 30 January 2019, LawLex202100001192JBJ (LJ).

Cass. com., 27 September 2011, LawLex202100001189JBJ (RJ).

Bankruptcy Law

595. Authorization for substitution by the court

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595. Authorization for substitution by the court

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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